The "anchor baby" loophole

In our 2008 post, Birthright citizenship is not constitutional, California State University Professor Edward Erler asks, "If the American Indians, who were certainly born in this country, were not considered automatic citizens by the Constitution's framers, how can it be that the offspring of foreigners who arrive here become automatic citizens?"

Erler debunks the fallacy of believing that anyone born within the geographical limits of the United States is automatically subject to its jurisdiction, and goes on to explain what the Constitution's 14th Amendment means by a person being "subject to the jurisdiction thereof."

Jurisdiction is understood as owing exclusive political allegiance, Erler explains, not simply subject to American laws or courts. A foreign child born in the US is subject to the same jurisdiction to which is parent[s] are subject – that of their native country to which they owe political allegiance.

From this, the question is raised, Why would the newborn baby of an American couple, whose company happened to assign them to the Beijing office, be considered a Chinese citizen? Why wouldn't such a baby, instead, be subject, as are his parents, to the jurisdiction of the United States?

Children's allegiance "should follow that of their parents during their minority," observes Erler. Further, he argues, it is difficult to fathom how any sovereign nation could allow any other policy.

In a Vdare article How Mexican Law Undercuts 'Anchor Baby' Interpretation of U.S. 14th Amendment, Allan Wall looks at the subject from another perspective – that is, Mexican law. He describes birthright citizenship as a "loophole" in American law, and tells of new bills introduced in Congress to rectify this misinterpretation, as well as actions now being taken on the state level.

As to Mexican illegals, Wall indicates that the key to resolution is proving that the children of aliens are not completely "subject to the jurisdiction of the United States." This can be done by using the laws of Mexico. He writes:

According to the Mexican Constitution, Capitulo II, Articulo 30, the child born to, or begotten by, a Mexican is a Mexican, regardless of where he is born.

The Mexicans by birth shall be…The individuals born abroad from Mexican parents who were born within national territory, from a Mexican father who was born within national territory or from a Mexican mother who was born within national territory…The Individuals born abroad from naturalized Mexican parents, from a naturalized Mexican father or from a naturalized Mexican mother…

Thus, any child born to a Mexican parent—either mother or father, regardless of whether that parent is a natural-born Mexican or naturalized Mexican—regardless of where he is born, is considered a Mexican.

And Mexican consulates have the authority to issue documentation to children born to Mexicans outside of Mexico, to confirm it.

Read the rest of Wall's discussion here.